Prisoner release case returns (FURTHER UPDATE)

FURTHER UPDATED 1:11 p.m. Justice Kennedy has asked for a response from the inmates’ lawyers, to be filed by 5 p.m. on Friday, July 19.

UPDATED Thursday 10:53 a.m.

Arguing that California has spent more than $1 billion to improve conditions in its prisons, and that it has already sent 37,000 inmates away from those facilities, state officials on Wednesday night urged the Supreme Court to put on hold for now a federal court order that they free another 9,600 prisoners. Because most of those removed so far from state facilities were “non-violent, non-serious offenders,” any further releases now would involve “serious and violent individuals,” the state contended. (The application for a stay, Brown v. Plata, 13A57, can be read here. With appendices, it is a fairly lengthy document.)

The request, sent to Justice Anthony M. Kennedy, argued that the three-judge district court has not carried out orders that the Supreme Court gave it two years ago to remain open to modifying its requirement that the state release enough inmates to reduce the overall prison population to 137.5% of its designed capacity by the end of this calendar year. “The prison conditions that exist today,” the application asserted, “do not resemble the conditions present in 2008, upon which the three-judge court and this Court predicted that the 137.5 percent cap would be necessary to remedy outstanding Eighth Amendment violations.”

The three-judge court has concluded that the state’s thirty-three prison sites are so overcrowded that the conditions have endangered the health of inmates in general, and have led to denial of proper care to those inmates who are mentally ill. The only effective remedy, the lower court found, was to reduce the prison population.

“The three-judge court,” the application said, “refused to give a full or fair examination of how these conditions have changed.” The state, it added, has, “at the very least, made significant progress toward remedying the failure in years past to deliver constitutionally adequate medical and mental health care to California’s prison inmates. California has now diverted tens of thousands of low-risk inmates from state prisons to local authorities, expanded good-time credits for certain classes of inmates to further reduce time spent in prison, and eliminated any need to use gymnasiums and day rooms for anything other than their intended purposes.”

Citing its releases to local jail facilities of 37,000 “low-risk” inmates, the state said that, as a result, it “is simply no longer the case” that the remaining population includes many non-serious prisoners. “The California prison population today is fundamentally different than it was before, so too are the potential public safety risks” of further releases, it argued.

The request to Kennedy, which could be referred to the full Court for action, asked the Court for a postponement of the district court’s June 20 order compelling the further releases by December 31, until the Supreme Court has a chance to review the release order. As an alternative, the state suggested that the Court should treat its application as a full-scale appeal, and grant review “immediately” so that the case could be fully briefed and heard by the Justices before the end of the year.

The following version of this was published Wednesday at 11:38 pm.

State officials in California are returning to the Supreme Court, seeking to delay the latest federal court order to compel release of thousands of prison inmates to relieve overcrowding at facilities across the state. The officials are faced with an order requiring that they reduce overcrowding by 9,600 inmates by the end of this year. (News reports in the state indicated Wednesday night that the state had asked Justice Anthony M. Kennedy to delay that order; the blog will post the document as soon as it becomes available.)

The dispute about overcrowding in the thirty-three prisons run by California has been running in the federal courts for nearly a quarter of a century, in one of the cases, and for a dozen years in the other. The cases have been combined in court, and have resulted in more than a hundred judicial orders. The Supreme Court, in a five-to-four decision in May 2011, upheld an earlier order by the special three-judge federal district court that set a prison population ceiling. In that ruling, the majority of Justices noted that the prisons at that time, though designed to house less than 80,000 inmates, actually were keeping more than double that number behind bars, causing severe conditions for physically and mentally ill prisoners.

Since the case returned to the district court, state officials and the three-judge court have been locked in a continuing struggle over specific remedies for the overcrowding. The judges have continued to insist that the only remedy that will work is a population reduction spread across California. The conditions that the district court, and inmates’ lawyers, have condemned have been highlighted by the recent outbreak of a widespread hunger strike behind prison walls, involving perhaps 30,000 prisoners.

At issue in the new challenge now reaching the Supreme Court is a June 20 court order directly reaffirming a 2011 order that would set a ceiling on the total number of inmates housed across the state at 137.5% of design capacity, to be achieved by this coming December 31. That fifty-one-page order can be read here. The judges said they would give officials some flexibility in how to achieve that year-end goal.

State officials then asked the district court to put the order on hold, saying they planned to appeal it to the Supreme Court. They said that, if the district court turned them down, they would then seek a delay from the Supreme Court. On July 3, the three judges refused the postponement request, saying that the case had run on long enough and criticizing California officials for not carrying out earlier orders. That twenty-four-page order can be read here. The filing at the Supreme Court Wednesday carried out the officials’ legal plan to pursue their new challenge.

Although the full Supreme Court acted on the earlier review of the dispute, the state’s new request was filed only with Justice Kennedy, who handles emergency legal matters from the geographic area that includes California. However, Kennedy has the option of acting on his own, or of sharing action with his colleagues.

(NOTE TO READERS: This blog will provide further coverage as the new Supreme Court maneuver unfolds.)

Major Cases

Trump v. Hawaii(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of October 27, 2017

Opalinski v. Robert Half International, Inc. Whether, where an arbitration agreement does not expressly refer to class arbitration, the determination of whether class arbitration is permitted by the agreement is a question of arbitrability for the court to decide or a question of interpretation and procedure for the arbitrator to decide.

S.S. v. Colorado River Indian Tribes (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.

Scott v. Maryland State Department of Labor Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process even without a showing of good cause, as the U.S. Court of Appeals for the 2d, 3d, 5th, 7th, 8th, 9th, 10th, 11th, and D.C. Circuits have held, and as the Supreme Court has interpreted, or whether the district court lacks such discretion, as the U.S. Court of Appeals for the 4th Circuit has squarely held and as the U.S. Court of Appeals for the 6th Circuit has repeatedly suggested.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.